State v. Arias, Unpublished Decision (6-29-2006)

JOURNAL ENTRY and OPINION {¶ 1} Defendant-appellant, Robert Arias ("defendant"), challenges the imposition of more than the minimum sentence in violation of R.C. 2929.14(B). For the reasons that follow, we vacate defendant's sentence and remand for resentencing.

{¶ 2} Defendant's sole assignment of error provides:

{¶ 3} "I. The trial court erred when it imposed more than the minimum sentence upon appellant in violation of R.C. 2929.14, in violation of Blakely v. Washington (2004), 542 U.S."

{¶ 4} The trial court imposed a four-year prison term, which exceeded the minimum prison term mandated absent specific judicial findings set forth in R.C. 2929.14(B). However, the Ohio Supreme Court has since declared unconstitutional and excised those, among other, sentencing provisions from the statutory scheme. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, ¶¶1-4, applying United States v. Booker (2005), 543 U.S. 220;Blakely v. Washington (2004), 542 U.S. 296; and Apprendi v.New Jersey (2000), 530 U.S. 466.

{¶ 5} Following Foster, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Foster, at paragraph 7 of the syllabus; State v.Mathis, ___, Ohio St.3d 2006-Ohio-855 at paragraph 3 of the syllabus. Nonetheless, defendants that were sentenced under unconstitutional and now void statutory provisions must be resentenced. Foster, 2006-Ohio-856, ¶¶ 103-106.

{¶ 6} Pursuant to the mandates of Foster, we sustain defendant's assignment of error, vacate his sentence, and remand for resentencing.

Sentence vacated; cause remanded for resentencing.

It is ordered that appellant recover of appellee his costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. Sentence vacated and case remanded for resentencing.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Karpinski, J., and Rocco, J., concur.